36.2 Ex facie valid deed

It is an essential feature of the a non domino facility that the deed is ex facie valid to found prescription. In the case of The Board of Management of Aberdeen College v Stewart Watt Youngson and another [2005] CSOH 31 the Court decided that a disposition by a person in favour of himself in exactly the same status or category (A to A) is invalid ex facie. The Court commented that a deed that purports to convey land from the granter to himself does not involve any transfer and that transfer of property is essential for an effective conveyance of land.

The result is that it is not possible to use section 1(1) of the Prescription and Limitation (Scotland) Act 1973 to establish a title that is exempt from challenge on the basis of a disposition recorded in the Sasine Register by a person in favour of himself. This is because section 1(2)(a) disapplies section 1(1) where the deed is invalid ex facie.

As a consequence, the Keeper will no longer accept for recording in the Sasine Register dispositions a non domino by a person in favour of himself (A to A). In order to adopt a consistent approach in the Sasine Register and the Land Register, the Keeper will also reject an application for registration in the Land Register where the deed inducing registration is a disposition a non domino by A to A.

While the question of whether a disposition by A to A can be a valid foundation writ for the purposes of positive prescription has previously been the subject of much academic debate, it has not prior to this decision in 2005 been the subject of any authoritative decision. Therefore the Keeper has previously accepted dispositions a non domino by A to A for recording in the Sasine Register and registration in the Land Register. Please see Registered titles with an exclusion of indemnity that have proceeded on a disposition a non domino by A to A and Prior recorded a non domino titles: has the title been validated by prescription? for instructions on how to deal with applications where there is such a registered title or a prior recorded disposition a non domino by A to A.

Dispositions a non domino by a person to a third party (A to B) submitted for registration in the Land Register will  be considered in line with the decision making process and the methodology noted below.

36.3 Keeper’s authority

Parties who present a non domino dispositions in either the Sasine Register or the Land Register frequently argue that the Keeper should accept such applications without question, since it is not within his remit to arbitrate between competing interests or to deprive parties of the benefits of prescription. The Keeper does not accept this argument. Agency policy is that a non domino titles must be questioned and a judgement formed as to whether they serve a legitimate purpose. The authority for this view is twofold.

In the case of Macdonald v. the Keeper of the General Register of Sasines 1914 SC 854, the opinion of the court included the following statement:

‘It was argued to us on behalf of the petitioner that the Keeper … was bound without cavil or question, to record the deed as it was presented to him. To this view thus stated we found ourselves wholly unable to accede, for we considered that a highly-placed official like the Keeper of the Register of Sasines was bound, in the faithful discharge of his statutory duties, to exercise some care and control over the register in order to secure its efficiency for the purposes for which it was created.’

Furthermore, section 4(2)(c) of the Land Registration (Scotland) Act 1979 requires the Keeper to reject any application for registration in the Land Register which is ‘frivolous or vexatious’. While the terms ‘frivolous’ and ‘vexatious’ are not defined in the Act and have not been exhaustively interpreted by the courts, it is assumed that many a non domino titles fall into one category or both.

While the benefits of the a non domino facility should not be lightly denied by the Keeper, it is necessary to consider the implications for a titleholder with a prior claim. Such proprietors may not become aware that a competing title is running against them. If they discover the a non domino title at the stage when they are transacting with their property, the discovery will render it unmarketable.

In order to resolve the difficulty, the proprietor with priority of infeftment may have to petition the court for reduction of the a non domino disposition, eviction of the challenger and rectification of the register. Agency policy is that the Keeper’s actions should not put a prior ranking proprietor in such a disadvantageous position, particularly since rule 18 of the Land Registration (Scotland) Rules 2006 prevents the Keeper from notifying prior infeft proprietors of a competing claim.

36.4 Identification: determining whether a disposition is a non domino

A disposition a non domino may form the deed inducing registration in an application for first registration or a dealing or transfer of part. It may fall within the prior prescriptive progress of recorded titles. In some cases, the first registration will proceed on a prescriptive progress in which the foundation deed was a non domino. In every case, it is important that once the legal settler has identified such a disposition it is referred to a senior caseworker who will consider the application and make the decision as to whether the application can proceed to be registered or whether it should be cancelled.

Occasionally, a disposition a non domino may contain the words ‘a non domino’ on its backing or – if it is recorded in the Sasine Register – the words ‘to found prescription’ may appear on the search sheet. However, since it is an essential feature of the a non domino facility that the deed is ex facie a valid foundation for prescription, solicitors drawing up such a deed will normally take care to ensure that there is nothing in the deed itself which discloses that it is a non domino. Settlers therefore need to be alert to other clues.

Obviously the deed will be granted by someone who is unable to demonstrate that they have the benefit of a prescriptive progress of titles; normally, therefore, the granter will not be the same person as the last infeft proprietor (although the granter may be a family member with the same name as the last infeft proprietor). Often the warrandice will be expressly excluded or qualified. In some cases, however, the disposition may be only partly a non domino – i.e. it may also convey interests to which the granter has a good title.

Sometimes the granter and grantee will be the same (A to A) however, it is now recognised that such a deed is not ex facie valid to found prescription. (See Ex facie valid deed).

Unfortunately, no hard and fast rules can be given to enable settlers to identify a non domino dispositions. Any settler who is in doubt in an individual case should therefore refer the application to a senior caseworker for a decision as to whether the deed in question is a non domino.

36.5 Decision-making process

Prior recorded a non domino dispositions

The Keeper’s policy vis-à-vis a non domino dispositions stems from the early 1990s. It is therefore likely that the majority of a non domino dispositions that form part of the prescriptive progress of titles supporting an application for registration will already have been subject to the decision making process outlined below. As such, no further enquiry need be made unless an a non domino disposition clearly conflicts with a prior recorded or registered title. In that event the application should be referred to a senior caseworker who will contact the submitting agent who will be asked to comment on the purpose of the a non domino disposition as per the undernoted guidelines. It is stressed that, where an application is founded on a prior recorded a non domino disposition, indemnity will be excluded unless the 10 year prescriptive period has elapsed and suitable evidence of prescriptive possession has been submitted (see Removal of exclusion of indemnity).

Special consideration should be given where the a non domino title is a disposition by the disponer in favour of himself (A to A). It is now recognised that dispositions a non domino by A to A are invalid ex facie (see Ex facie valid deed), it is important that settlers check whether there is such a deed in the prescriptive progress of titles. See Prior recorded a non domino titles: has the title been validated by prescription? for instructions on how applications where there is a prior recorded disposition a non domino by A to A in the prescriptive progress of titles are dealt with.

A non domino deed inducing registration

Where the deed inducing registration is an a non domino disposition (see Ex facie valid deed) the legal settler should refer the application to a senior caseworker.

36.5.1 Can a prior title be traced?

The most common reason given for using the a non domino facility is that the disponee has not been able to identify a recorded or registered title which includes the ground in question. In a land register operational area, the digital mapping system should have been checked by the solicitor (e.g. by obtaining a Form 14 report or interrogating Registers Direct) to ensure that there is no registered title which includes the ground. If there is no competing title in the land register, then the Sasine Register search sheets should have been checked. Frequently, however, the nature of the description in the prior title may not enable it to be traced through the Sasines indices without further information.

In many cases, the disponee may have some suspicion as to the identity of the possible prior titleholder, and enquiries will be made by the senior caseworker with the solicitors to ensure that they have asked the relevant party whether they own the land, or whether they have searched for titles held by that party and examined them. Where the disponee wishes to take title to land adjoining property which he already owns, the disponee’s existing titles may contain clues (e.g. in the bounding description) as to the ownership of the land in question.

While the circumstances of individual cases may differ, in every case satisfactory evidence must be obtained to ensure that all reasonable steps have been taken to identify prior recorded or registered titles.

36.5.2 Can the infeft proprietor be traced?

The a non domino facility is sometimes used where a recorded or registered title has been identified, but it is not possible to take title from the last proprietor or the successors of that proprietor. Where this is the case, the senior caseworker will ask the applicant’s solicitors what steps have been taken to contact the last proprietor with a recorded title or to establish links in title between that proprietor and a successor. For instance, the solicitors may be able to demonstrate that they have written to the proprietor at his last known address, or contacted the solicitors who most recently acted for him, or advertised in the local or national press for persons who may be able to demonstrate an interest in the property. If there is any likelihood that the property has fallen to the Crown as ultimus haeres or that it is bona vacantia of a former company, the solicitors should be asked to contact the Queen’s and Lord Treasurer’s Remembrancer at The Crown Office, Unit 5, 14A South St Andrew Street, Edinburgh EH2 2AZ.

While the circumstances of individual cases may differ, in every case satisfactory evidence must be obtained to ensure that all reasonable steps have been taken to trace parties who may have a better claim, and to obtain a conveyance supported by any necessary links in title. For instance, the expense of petitioning the court for the appointment of new trustees to a lapsed trust is not itself a good reason for using the a non domino facility.

36.5.2.1 Role of the QLTR

The Queen's and Lord Treasurer's Remembrancer (QLTR) is responsible for administering, or, where appropriate, abandoning, the Crown's interest in an estate which has become "ownerless" either by way of being ultimus haeres or bona vacantia. Property falls to the Crown as ultimus haeres upon intestacy where no heirs can be identified whereas the assets of dissolved companies, missing persons and lost or abandoned property fall to the Crown as bona vacantia. In the event that the QLTR chooses to transact with those subjects which vest in him either as ultimus haeres or bona vacantia he must proceed by virtue of a Deed of Gift, under Royal Warrant, by which terms he is appointed donee in trust of the estate. The purchaser's Title is thus derived through the QLTR from the Crown.

36.5.2.2 Link in Title

It is not necessary for the Deed of Gift to narrate each component of the estate which could potentially be conveyed given that the terms of the Deed of Gift pass Title to all assets to the QLTR. Consequently the Deed of Gift will be an adequate link in Title and an exclusion of indemnity need not be included in the Title Sheet. It should also be noted that while the QLTR is entitled to administer those estates which have fallen to the Crown as ultimus haeres it is not necessary to obtain confirmation prior to doing so. A Certified Copy of the original Deed of Gift will require to be submitted by the QLTR in support an application for registration of the purchaser's Disposition. In the event that the QLTR chooses to abandon the Crown's interest in property held either as ultimus heares or as bona vacantia he will be required to submit evidence to that effect by way of a formal letter of abandonment.

36.5.2.3 Outstanding Standard security

Where property falls to the QLTR, if it is subject to a heritable security, then it is open to the creditor to follow the appropriate calling up procedures to recover the debt, any surplus going to the Crown. In such circumstances the sale would be by the creditor in exercise of its power of sale. In the event of a sale by the QLTR the Keeper would expect the outstanding security to be formally discharged.

36.5.3 Why has an a non domino title been sought?

While an a non domino title may be used legitimately to regularise title difficulties which would otherwise remain unresolved, it should be borne in mind the possibility that a non domino dispositions may sometimes be used by speculators who can demonstrate no justifiable reason for having a preferred claim to a particular property. It is, therefore, important to establish the reasons why the disponee wishes to acquire title. Some a non domino titles relate to land which the disponee has already occupied for many years in ignorance of his lack of title. Other such titles relate to interests to which the disponee may already have an implicit right (e.g. roofspace in a tenement to which the common law provisions apply). The use of the a non domino facility may be acceptable in such circumstances. However, the Keeper is obliged to decline to register such titles if the disponee has merely identified vacant ground in which he had no prior interest, and is attempting to gain at the expense of an identified or unidentified prior titleholder.

36.6 Methodology

Where an a non domino title is identified, the following methodology should be followed. It is stressed that these procedures should be adopted as soon as the a non domino title is identified, irrespective of the stage of processing which the application has reached. For instance, plans settlers have instructions in the Plans Manual to refer all a non domino titles to a senior officer without delay. A senior caseworker will decide whether the application fulfils a legitimate purpose or whether it should be refused. If there is any possibility that the application may require to rejected, this will be dealt with as soon as possible after the date of receipt.

36.6.1 Referral

The settler should refer the application and supportive documentation to a senior caseworker. The decision to accept or reject any a non domino disposition has the potential to be contentious. The senior caseworker will therefore view the whole circumstances of the case in light of RoS policy, and may suggest further evidence which might influence the Keeper’s decision. While there is room for discretion in individual cases, a consistent approach is important to obviate allegations of unfairness. Where there is any doubt, the senior caseworker should therefore refer the application to Legal Services.

The senior caseworker is responsible for deciding what evidence is required in relation to the points noted in Decision-making process, but any further requisition should not lead the applicant’s solicitor to believe that the application will necessarily be rejected or accepted, rather that the Keeper has to take a view on the basis of the full relevant information.

In view of the provisions of rule 18 of the Land Registration (Scotland) Rules 2006 neither a party who appears to have a prior title, nor that party’s solicitors, will be contacted. However, it may in some cases be appropriate to invite the applicant’s solicitors to contact a competing proprietor, either to obtain information or to elicit the co-operation of that proprietor. Any such request to the applicant’s solicitors should be handled with extreme caution.

If information is received from a solicitor or member of the public that an application involving an a non domino Disposition is in bad faith or otherwise defective, the matter must be treated very carefully. Registration staff receiving such information should refer it to a senior caseworker who will discuss the matter with Legal services if required. See Problems detected in examination of title and/or advised to Keeper by other parties for further information.

36.6.2 Rejection

If the senior caseworker decides to reject the application, the normal cancellation procedures will be put in place. If the application includes other subjects which are not affected by the a non domino element, the application should be processed but the a non domino interest should be omitted from the title sheet.

36.6.3 Registration subject to exclusion of indemnity

If the senior caseworker decides to accept the application, it should be processed as usual. However, indemnity should be excluded in respect of the lack of a prescriptive progress of titles prior to the a non domino deed. The wording of the exclusion of indemnity may vary according to the circumstances of the case, but a suggested style is:

Note: [As regards the part tinted xxx on the title plan,] Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that no evidence of title prior to a Disposition by A to B registered [recorded G.R.S. (xxx)] xxx has been produced to the Keeper.

If there is an identified prior ranking title, this should be disclosed in the following style:

Note: [As regards the part tinted xxx on the title plan,] Indemnity is excluded in terms of Section 12(2) of the Land Registration (Scotland) Act 1979 in respect that a Disposition to C of the subjects in this title [or the said part tinted xxx on the title plan] was registered [recorded G.R.S. (xxx)] xxx and ranks prior to the Disposition by A to B registered [recorded G.R.S. (xxx)] xxx on which the entitlement of the said B was founded.

36.7 Removal of exclusion of indemnity

All applications to remove exclusions of indemnity should be referred to a senior caseworker. Where the interest is subject to a competing title the points covered in Rectification and removal of exclusion of indemnity must be considered.

Once a period of ten years has expired after the recording or registration of the a non domino title, the proprietor deriving right therefrom may apply for the exclusion of indemnity to be removed. The application should be made on Form 2 (not Form 9). The application should be accompanied by satisfactory evidence that the interest has been possessed on the strength of the title openly, peaceably and without judicial interruption throughout the prescriptive period. Evidence of possession prior to the recording of the title should be ignored.

Special consideration should be given where the a non domino title is a disposition by the disponer in favour of himself (A to A) (see Registered titles with an exclusion of indemnity that have proceeded on a disposition a non domino by A to A).

What constitutes evidence of possession will vary from case to case. In some straightforward low risk cases affidavits from the titleholders may be sufficient, provided they contain sufficient information as to the nature and extent of possession to show that all the requirements of section 1(1) of the 1973 Act have been fulfilled. A bald statement that there has been open, peaceable and unchallenged possession is not enough. In other cases it may be appropriate to ask for affidavits from neighbouring proprietors attesting to the possession of the property by the applicant. In others still, particularly where high value development land is concerned, it may be appropriate to insist on a Court Declarator. The senior caseworker must determine in light of all the circumstances of the case what would constitute the appropriate evidence. In particular the senior caseworker should be alert to the possibility of competing interests, particularly if there is any doubt as to whether any requirement of section 1(1) has been met. Evidence of possession prior to the recording of the title should be ignored. In cases of doubt the senior caseworker will discuss the matter with Legal Services.

The senior caseworker will also be alert to the possibility of competing interests, particularly if there is any doubt as to whether any requirement of section 1(1) of the 1973 Act has been met. The settler must not approach potential competing proprietors or their solicitors, but may request the applicant’s solicitors to obtain (e.g.) formal acknowledgement from the potential competitors that they no longer have any interest.

It is also important to ensure that any possession can be clearly attributed to the interest in land to which the a non domino title relates. The normal rule is that possession is attributed to the lowest interest with which it is consistent. For instance, a proprietor who has an a non domino title to the solum of a roadway may also have an implied or explicit servitude right over the roadway. In that case, use of the roadway which is consistent with the exercise of a servitude right would not validate the title to the solum. Similarly, a tenant who takes title a non domino to the landlord’s interest cannot validate the latter title simply by occupying the land.

In any case where there is doubt – e.g. because it is not clear whether the proprietors’ actions fulfil the requirements of section 1(1), or where there may be the potential for dispute as to the circumstances or the evidence – the Keeper is entitled to refuse to remove the exclusion of indemnity. In that event, as indicated above, the normal course is for the proprietors to seek a court declarator showing that they have had exclusive possession. If a Form 2 application is accompanied by such a declarator, the application should be referred to a senior caseworker who will ensure there is evidence that the court has addressed and decided all the relevant issues. They must also ensure that any period during which the declarator may be open to challenge has expired. This is most likely to be the case if the initial writ in the court action has not been personally served on the defender.

36.7.1 Registered titles with an exclusion of indemnity that have proceeded on a disposition a non domino by A to A

As stated above in The Board of Management of Aberdeen College v Stewart Watt Youngson and another [2005] CSOH 31 the Court decided that a disposition a non domino by the disponer in favour of himself (A to A) is invalid ex facie and as such, is not a foundation writ for the purposes of positive prescription (see Ex facie valid deed)

Prior to this decision in 2005 the Keeper accepted applications for registration that proceeded on a disposition a non domino by A to A either as the deed inducing registration or in the prior prescriptive progress of titles. As a consequence, the Land Register currently contains titles with an exclusion of indemnity that have proceeded on such deeds.

The decision in the above case does not, as regards the post-registration period, affect the operation of positive prescription in the Land Register to make a title exempt from challenge. Therefore, positive prescription can continue to operate on a title which is already registered in the Land Register, subject to an exclusion of indemnity, where the deed inducing registration was a disposition a non domino by A to A. For instance where the disposition a non domino by A to A was registered in the Land Register in June 2000, the exclusion of indemnity can be removed in June 2010 provided suitable evidence of prescriptive possession has been submitted.

The decision in the above case does however mean that the period of possession relied on by the Keeper to remove the exclusion must discount any period which was founded on a disposition a non domino by A to A recorded in the Sasine Register prior to the interest being registered in the Land Register.

For example:

1. Disposition by A to A recorded June 1999

2. Disposition by A to B registered June 2004, subject to an exclusion of indemnity

Notwithstanding the prior recorded disposition by A to A recorded in June 1999 in this example, the prescriptive period will run from the date of registration of B's title in June 2004.

The exclusion of indemnity can only be removed in June 2014 if suitable evidence of prescriptive possession from June 2004 to June 2014 has been submitted. (See Prior recorded a non domino titles: has the title been validated by prescription?)

The matter should be referred to a senior caseworker for a decision.

36.8 Prior recorded a non domino titles, has the title been validated by prescription?

If at least ten years have elapsed since the recording of an ex facie valid a non domino disposition in the Sasine Register, it is possible that the title has been rendered unchallengeable by the operation of prescription in terms of section 1(1) of the Prescription and Limitation (Scotland) Act 1973. In that event, the senior caseworker will requisition evidence (as per Removal of exclusion of indemnity) that the a non domino disponee and any successors in title have possessed the property openly, peaceably and without judicial interruption throughout the prescriptive period. If 10 years have not elapsed indemnity must be excluded

It is stressed that a disposition a non domino by the granter in favour of himself (A to A) recorded in the Sasine Register is not an ex facie valid disposition to found prescription in terms of section 1(1) of the Prescription and Limitation (Scotland) Act 1973. Possession on such a title, for any period of time, cannot therefore render the title unchallengeable. (See Ex facie valid deed).

Where the application for registration includes in the prior prescriptive progress of titles a disposition a non domino by A to A, the senior caseworker will consider whether positive prescription has operated on a subsequent title in the prior prescriptive progress of titles that is ex facie valid to found prescription. The examples given below illustrate the circumstances in which this could happen:

Example 1

1. Disposition by A to A recorded March 1988
2. Disposition by A to B recorded July 1998
3. Disposition by B to C registered October 2010 (the DIR)
In Example 1 any period of possession founded on the Disposition by A to A in 1988 should be discounted and the Disposition by A to B in 1998 should be treated as the foundation deed. If the disposition by A to B is ex facie valid to found prescription and suitable evidence of prescriptive possession has been submitted (as per Removal of exclusion of indemnity), C has a title fortified by prescription.

Example 2
1. Disposition by A to A recorded October 1995
2. Disposition by A to B recorded April 1996
3. Disposition by B to C registered January 2002 (the DIR)
4. Disposition by C to D registered April 2012
Similarly in Example 2 the period of possession relied on should discount the disposition by A to A in 1990 and consideration will be given to whether the 10 year prescriptive period has run from the disposition by A to B in 1996. In this example the prescriptive period had not run prior to the disposition by B to C that induced registration in 2002 and therefore indemnity will have been excluded until the end of the prescriptive period from the date of recording of the disposition by A to B in 1996 has elapsed and suitable evidence of prescriptive possession has been submitted - in this example when the disposition by C to D is submitted as a dealing in April 2012.

Example 3
1. Disposition by A to A recorded July 1993
2. Disposition by A to B registered October 2010 (the DIR)
In Example 3 the disposition by A to B inducing registration would be a non domino in nature. Registration would give B a title on which positive prescription can operate to make it exempt from challenge. The disposition by A to B will be considered in line with the decision making process and methodology outlined above. If B's title is acceptable for registration, it must be registered subject to an exclusion of indemnity until the 10 year prescriptive period has elapsed and suitable evidence of prescriptive possession has been submitted. Notwithstanding the prior disposition by A to A recorded in 1993, the period of possession will run from the date of registration of B's title.